Tutwiler Coal, Coke & Iron Co. v. Enslen

• Decision Date: 14 February 1901
• Parties: TUTWILER COAL, COKE & IRON CO. v. ENSLEN. [1]
• Court: Alabama Supreme Court

30 So. 600

129 Ala. 336

TUTWILER COAL, COKE & IRON CO. v. ENSLEN. ^[1]

Supreme Court of Alabama

February 14, 1901

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by Charles F. Enslen, as administrator of the estate of Delius Jones, against the Tutwiler Coal, Coke & Iron Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This was an action brought by Charles F. Enslen as administrator of the estate of Delius Jones, against the Tutwiler Coal Coke & Iron Company, to recover damages for the alleged negligent killing of plaintiff's intestate in the defendant's mines. The complaint as originally filed contained five counts, but the court gave the general affirmative charge in favor of the defendant on all of the counts in the complaint except the first. The first count of the complaint was in words and figures as follows "Plaintiff claims of defendant fifteen thousand dollars as damages, for that heretofore, to wit, on April 17th, 1899 defendant was operating a certain coal mine at or near Murray in Jefferson county, Alabama, known as 'No. 4' or 'Slope No. 4'; that plaintiff's intestate, who was a minor, was in the service or employment of defendant and while engaged in or about the said service or business of defendant in said mine, a part of the roof or top of said mine fell upon said intestate, and as a proximate consequence thereof he was so injured that he died. Plaintiff avers that said part of said roof fell upon said intestate as aforesaid, and he was injured and caused to die as aforesaid, by reason and as a proximate consequence of a defect in the condition of the ways, works, machinery or plant used in or connected with the said business of defendant, which defect arose from, or had not been discovered or remedied owing to the negligence of some person in the service or employment of defendant, and intrusted by it with the duty of seeing that said ways, works, machinery or plant were in proper condition, viz. said roof, or a part thereof, which fell upon said intestate as aforesaid, was not sufficiently stable or secure or sufficiently protected from falling."

There was a demurrer interposed to this count of the complaint, assigning several grounds, but it is unnecessary to set out these demurrers. The minute entry relative to the demurrers was as follows: "Defendant's demurrer to the complaint is by the court heard, considered and overruled." The defendant pleaded the general issue, and by special plea set up the contributory negligence of the plaintiff's intestate in that at the time he was killed the plaintiff negligently, and contrary to the orders and warnings of the defendant, had gone to a place in the mines where his duties did not require him to be. Issue was joined on these pleas.

It was shown by the evidence that Delius Jones was a negro boy 14 years of age, and was employed in the defendant's mine as a "chainer"; that the duties of a chainer were to change the chain that hauled the cars out of the mines from the empty cars to the loaded cars and vice versa, and to see that all of the cars were properly coupled before being hauled out of the mines; that the duties of the chainer required him to be in the main slope of the mine; that it was along the main slope of the mine that the empty and loaded cars were carried; that for a considerable distance down the main slope there was one track; that after going down some distance there was a switch on the main track, and from this switch down into the mines there were two tracks, one of which was used by loaded cars and the other for empty cars; that about 50 feet from the switch was what is known as a "safety hole" which was placed there in order that the chainer might get into it, thus being out of the danger of the cars being hauled out of the mines, if they should break loose and run back into the slope; that about 50 feet beyond this safety hole along the track, there was what was called "the first right cross entry," which went into another portion of the mines, and along which entry there was a track for the cars to run. It was further shown that the duties of the chainer required him to be about the switch above the right cross entry, in order that he might change the chain from the empty cars let down in the mines onto the loaded cars which were to be drawn up.

The plaintiff's intestate Delius Jones was shown to have been along the main slope opposite the right cross entry at the time he was killed; that his death was caused by a rock falling from the roof of the main slope on him. The plaintiff's evidence tended to show that the rock which fell on his intestate had been loose for several days, that this fact had been called to the attention of one James Kelso, who was the bank boss of the mines and whose duty it was to see that the slope of the mine, in every respect, was kept in proper repair. That when rock are loose in the roof of the slope, the best way to get rid of them is to punch them down, and if this is not done, then the rock should be propped up. There was some evidence introduced by the plaintiff tending to show that while he was engaged as a "chainer" it was also his duty to turn cars as they came down from one track onto the other, and that he was so engaged in turning cars from the track in the main slope onto the track in the first right entry, when the rock fell on him. There was other evidence for the plaintiff tending to show that his duties as a chainer required him to go as far down into the slope as the first right cross entry, and even below it, for the purpose of inspecting the cars, to see if they were properly coupled before being hauled out of the mine.

The testimony of the mother of Delius Jones, plaintiff's intestate, in reference to said Delius Jones, was as follows: "He was 13 years old when he was killed. Would have been 14 on the 25th of August following. He was a bright, smart, industrious boy, and earned 75 cents a day. He lived with me, and worked in the mines of the Tutwiler Coal, Coke & Iron Co. He worked every day that the mines worked. He was killed on the 17th day of April, 1898, by a rock falling on him. The rock that fell on him burst his bladder. Delius sometimes drew his money, and sometimes I drew it for him. When he drew it, he always brought it and turned it over to me. He had been chaining at the mines for about two months. Before that time, he had been trapping, and got 50 cents a day. For chaining he got 75 cents a day. He was a healthy boy and stout for his age. He had good habits and never wasted his money."

James Kelso, a witness for the defendant, testified that he was the bank boss of the defendant's mines at the time the plaintiff's intestate was killed; that he hired Delius Jones and that at the time he was killed he was a chainer; that in assigning him to this duty, he, Kelso, carried him to the place where he was to work, and instructed him to be careful and remain at that place and get into the safety hole when he was not engaged in coupling and uncoupling the chain; that his place when not so engaged in coupling and uncoupling the chain and in throwing the switch was in the safety hole, and that Delius Jones had no business down the slope as far as the right cross entry; that it was not part of the chainer's duty to inspect the loading of cars; that Delius Jones had no right to go where he was killed, and his duties did not require him to go further down the slope than the safety hole. The witness Kelso further testified that he did not know that the rock which fell on Delius Jones was loose, that he had never been notified by any one that it was in a dangerous condition, and that while it was his duty to inspect everything as fully as he could, he had never made an inspection of the roof at the place where the rock fell.

John Capps, a witness for the defendant, testified that he was what is known as a "boss driver" for the defendant, and was under the superintendence of Kelso. The testimony of this witness was especifically the same as that of Kelso. In reference to the duties of the plaintiff's intestate, the witness further testified that he was at the place where he was hurt by the request of the driver, and that Delius Jones, the intestate, had gone there to assist the driver in turning the car from the main slope into the right cross entry, and that his duties did not require him to be there. The other facts of the case are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe from the evidence that Delius Jones had been warned by James Kelso not to go to the point where he was injured, and in disregard of such orders he went to said point, then he was guilty of contributory negligence, and cannot recover in this suit." (2) "If the jury believe from the evidence that Delius Jones knew of the defect complained of in the complaint, and went under the rock that injured him voluntarily and without being required to go there in the discharge of his duties, then he was guilty of contributory negligence, and cannot recover in this suit." (3) "I charge you, gentlemen of the jury, that it was not defendant's duty to warn plaintiff's intestate of dangers at points in its mine where it was not necessary for him to go in the discharge of his duties, and if the jury believe from the evidence that plaintiff's intestate was injured at such point, then defendant was guilty of no negligence, and plaintiff cannot recover in this suit." (4) "If the jury believe the evidence, they must find for the defendant under the first count of the...